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Busting the myths about your death

28 Aug 2019

It’s time to bust some myths about succession and inheritance, just in time for National Wills Week

There's an old joke, "Where there’s a Will, I want to be in it!” We've all seen movies where someone’s Last Will and Testament brings mysterious, fabulous riches out of nowhere, but the reality is often far more complex and serious.

This is because many are living in a dangerous set of circumstances, should their loved ones pass on. According to 2017 Master of the High Court's figures, over 70 percent of South Africans don’t have a Will – a dangerous situation in a country where legal marriage is rare and blended families are the norm.

National Wills Week in South Africa is from 16 to 20 September 2019. “National Wills Week is an opportunity for everyone to contact an attorney who will assist you to get a free Will. Everyone should have a Will in order to dictate how their assets should be distributed upon their death. In the absence of a Will, legislation chooses your heirs and there's nothing that can be done to stop people from benefiting from your estate if you don’t have a Will drafted,” says Faeeza Khan, Senior Legal Marketing Specialist at Liberty.

Myth 1: We have a common law marriage (or have paid lobola) so I’ll inherit from my spouse

Many people assume that, if they’ve been living together for long enough, they’re married in the eyes of the law. They’re wrong. Khan says, “There is no such thing as a common law spouse in South Africa. Should one of the partners die without a Will, the other partner won't inherit a cent, because the Intestate Succession Act doesn’t recognise partners as spouses for purposes of intestate succession.”

Myth 2: I'm healthy and have decades left to live, so I don’t need to worry about a Will

The reality is, that you could die at any time, most likely leaving your loved ones destitute if you do. That’s the least of your worries. It’s not only your Last Will and Testament that has the power to overturn your and your family’s lives, it’s
others as well.

“Say a family member passes away and nominates you as the guardian of their children but doesn’t tell you or leave enough money for you to look after their children,” says Khan. If you accept the guardian nomination in terms of a Will and are appointed as a legal guardian of the children by the High Court, you'll be legally obligated to look after the children with your own money and time – a good reason to talk to your loved ones about where you all stand with your last wishes.

Myth 3: The money that my children need will go to them

Not necessarily. A whole bunch of factors come into play here, explains Khan. “If your estate is less than R250 000 and you're in your second marriage, with children from your first marriage, those children will not inherit a cent. This is because South Africa’s Intestate Succession Act says your spouse
must receive the greater portion of R250 000 or a child’s portion. If your estate is R600 000 and you have three children, your spouse will get R250 000 and the balance will be shared between your children. It doesn’t matter how old they are, if they still need money for schooling, makes no difference."

“Likewise, foster children do not qualify as heirs in the intestate estate of parents. Only natural or adopted children are considered heirs for intestate succession purposes without a Will to say otherwise. In terms of the Intestate Succession Act, any benefit that accrues to a minor child will be liquidated and held in the guardian's fund until that child has attained the age of majority. The guardian is entitled to receive maintenance from the Guardians fund, but it’s an administratively burdensome process, with a ‘pay now and prove your claim to be repaid’ attitude.”

Myth 4: My parents will be taken care of

Just like in the case of children, the law prioritises your legal spouse first and foremost. The law doesn’t consider the fact that your mother is elderly and requires care – it prioritises contractual obligations like marriage. And, according to Khan, the law only recognises biological parents too. “If you are a foster child and pass away without a spouse or children, your foster parents who might’ve raised you will not inherit from your estate. Your biological parents will benefit even though they might have abandoned you. Only legally adoptive parents qualify as heirs.”

Myth 5: The money will ultimately go to who I wanted it to go to

The law doesn’t know who your favourite cousin is or that you haven’t spoken to your brother in ten years – and it doesn’t care much either. According to Khan, this is because of the rules of the Intestate Succession Act, “You could have situations where you haven’t had a relationship with a family member for many years, but because of the bloodline form of succession, they will benefit from your estate because you failed to leave a Will.”

All this really underscores the need to leave a Will, to ensure that your assets and wishes are respected after you pass away. It also means communication is a must – you don’t want to be saddled with requirements from loved ones’ Wills that you can’t or don’t wish to keep.

“When you draft a Last Will and Testament, you get the opportunity to exercise your right to decide who will be the heirs to your estate,” concludes Khan. “It can be as simple as telling your Financial Adviser - or banker or lawyer - what your intention is. They will draft you a written Will; you must be over the age of 16 and must sign it in the presence of two witnesses who are older than 14 years old and with everyone of sound mind. If those requirements are fulfilled, you will have a valid last Will and Testament and peace of mind.”

If you haven't updated your Last Will and Testament yet, speak to your Liberty Financial Adviser or Broker today.